Jenoff v. Hearst Corp.

• Decision Date: 27 June 1978
• Docket Number: Civ. No. H-75-692.
• Citation: 453 F. Supp. 541
• Parties: Leonard JENOFF, Plaintiff, v. The HEARST CORPORATION, Defendant.
• Court: U.S. District Court — District of Maryland

453 F. Supp. 541

Leonard JENOFF, Plaintiff, v. The HEARST CORPORATION, Defendant.

Civ. No. H-75-692.

United States District Court, D. Maryland.

June 27, 1978.

H. Russell Smouse and George F. Pappas, Baltimore, Md., for plaintiff.

Theodore Sherbow, William A. Agee and Sherbow, Shea & Doyle, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

ALEXANDER HARVEY, II, District Judge:

In this libel action,¹ plaintiff Leonard Jenoff is seeking damages from the Hearst Corporation, which publishes The News American.² Plaintiff's second amended complaint alleges in forty-six Counts that seven different stories which appeared in various editions of defendant's newspapers between December 22 and December 31, 1974 and on February 7, 1975 were libelous. Each odd-numbered Count asserts a cause of action based on the alleged malicious publication by defendant of defamatory statements, and each even-numbered Count asserts a cause of action based on the alleged negligent publication by defendant of the same statements. Compensatory damages are sought in the twenty-three even-numbered Counts, and compensatory and punitive damages are sought in the twenty-three odd-numbered Counts.

The articles³ which form the basis of plaintiff's complaint contained various statements relating to plaintiff's activities as a "police spy." At the time that the articles were written, there was pending in a state court in Maryland a notorious criminal case involving one John E. (Liddie) Jones, who had been accused of being a major heroin dealer in the Baltimore area. William Carrier, a Baltimore lawyer, was one of Jones' attorneys. The newspaper articles, which are the subject of this libel action and which were published on December 22, 1974 and thereafter, charged, inter alia, that plaintiff, acting for the Baltimore City Police Department, broke into Carrier's office one night in August 1974 and that two key written statements of defense witnesses disappeared from the attorney's office. Earlier articles concerning plaintiff had appeared in defendant's newspaper on December 11, 12, 13, 14 and 15, 1974, but plaintiff does not allege that these articles were libelous. These earlier articles had included statements that plaintiff was a "secret operative" of the Inspectional Services Division ("the ISD") of the Police Department and that plaintiff had "infiltrated" the offices of attorney Carrier by working as the attorney's investigator. However, these earlier articles did not state that plaintiff had broken into the attorney's office in August 1974.

Presently pending before this Court is a motion for summary judgment filed by the defendant, pursuant to Rule 56, F.R.Civ.P. Briefs in support of and in opposition to the motion, as well as numerous exhibits, affidavits and depositions, have been filed by the parties. Defendant relies on several of the depositions that have been filed and also on the affidavits of two reporters, an editor and certain individuals who were the principal sources for the articles. In opposing the pending motion, plaintiff relies on the depositions of plaintiff and of Lt. Donald Woods of the Baltimore City Police Department. This Court would note that summary judgment was granted in favor of defendant here in an earlier libel action brought in this Court by Lt. Woods, based upon the same series of articles. Woods v. Hearst Corporation, 2 Med.L.Rptr. 1548 (D.Md.1977). However, this case presents issues quite different from those in the Woods suit.

What must be decided here is the proper standard which the Court should apply in determining whether defendant is liable under the facts of this case. In particular, this Court must decide whether the test of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) is applicable in this case. Defendant contends that police informant Jenoff was either a "public official" or a "public figure", and defendant urges this Court to adopt the actual malice standard. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Defendant further asserts that under such a standard, it is entitled to summary judgment on this record on all Counts. Plaintiff, on the other hand, contends that he is "a private individual" under the criteria of Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) and that the negligence standard is therefore appropriate. Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976). Plaintiff further asserts that summary judgment is not appropriate because there are disputed issues of fact both as to the negligence and the malice of defendant alleged in this case.

After a review of the briefs and the record and after hearing oral argument, this Court is satisfied that defendant's motion for summary judgment should be granted in part and denied in part. This Court would agree with plaintiff that an undercover police informant performing the duties he did here is neither a "public official" nor a "public figure."

I

The "public official" doctrine

In New York Times v. Sullivan, supra, the Supreme Court held that the First Amendment prohibits a public official from recovering damages for defamatory and false statements relating to his official conduct unless he proves that the statement was made with actual malice.⁴ The plaintiff there was an elected Commissioner of the City of Montgomery, Alabama, who was held under the facts presented to be a "public official."

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Supreme Court further explained the "public official" doctrine. The Court stated at page 85, 86 S.Ct. at page 676:

It is clear therefore that the "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

Accordingly, the Court there held that a county commissioner in charge of a county ski recreation area could be a "public official."

It is now well established that a police officer may be a "public official." Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971) (involving a deputy chief of detectives); Thuma v. Hearst Corporation, 340 F.Supp. 867 (D.Md.1972) (involving a police captain); Woods v. Hearst Corporation, supra (involving a police lieutenant). However, the parties have not cited, and independent research has not disclosed, any authority for the proposition that an undercover police informant is a "public official." Indeed, the very proposition is a contradiction in terms.

In extensive pretrial proceedings in this case, defendant has been permitted to engage in wide-ranging discovery pertaining to plaintiff's activities over a period of years as an undercover informant. At various times, plaintiff has supplied information to the Baltimore City Police Department, to the Federal Bureau of Investigation and to the Drug Enforcement Administration. Investigative files have been produced by these agencies and have been reviewed by counsel for defendant.⁵

A review of these files makes it abundantly clear that plaintiff was never even an employee of a state or federal law enforcement agency, much less a public one. The DEA files which have been produced indicate that plaintiff was an unpaid, cooperating informant whose involvement with the DEA ended in April 1971. From 1971 to 1973, plaintiff also supplied information to the F.B.I. In a memorandum dated November 12, 1971 prepared by F.B.I. Special Agent Roland Swanson, plaintiff was characterized as a "potential criminal informant," and plaintiff was advised that he should not consider himself an employee of the F.B.I., although he would be reimbursed for some expenses. From February 1974 to January 1975, plaintiff furnished similar information to the ISD of the Baltimore City Police Department. He was not a salaried employee of the Department but was reimbursed for expenses of approximately $423.

Defendant argues that plaintiff's status as a confidential informant was equivalent to that of an undercover police officer and that therefore plaintiff was a "public official." This contention is clearly without merit. An undercover police officer is a salaried full-time employee of a police department who, for limited periods of time, poses as a private citizen. On the other hand, plaintiff was an actual private citizen who occasionally supplied information to law enforcement agencies and who was reimbursed for some of his expenses. Indeed, plaintiff performed a function which could not be undertaken by an undercover police officer who could do no more than pretend that he was a private citizen. The very nature of plaintiff's duties required that he conduct his activities privately and as far removed from public or open scrutiny as possible.

On the record here, this Court concludes that plaintiff was not a government or public employee and that in any event, his status as a confidential informant was certainly not "of such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it." Rosenblatt v. Baer, supra, 383 U.S. at 86, 86 S.Ct. at 676. A confidential informant performing services of the sort involved here is neither "public" nor an "official." Plaintiff is therefore not a "public official" under New York Times v. Sullivan, supra.

II

The "public figure" doctrine

In Curtis Publishing Co. v. Butts, supra, the Supreme Court extended the actual malice standard of New York Times v. Sullivan, supra to "public figures." In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), a plurality of the Supreme Court went still further and concluded that the actual malice standard applies to private individuals as well when they...